United States District Court, D. New Mexico
January 5, 2017
PATRICIA DUKERT, Individually and as Personal Representative of the Estate of Clare William Dukert, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
COURT'S FINDINGS OF FACT AND CONCLUSIONS OF
CASE is a wrongful death action filed by Patricia Dukert
(“Plaintiff”), Individually and as Personal
Representative of the Estate of Clare William Dukert, against
the United States of America (“Defendant”) as a
result of alleged medical malpractice by physicians at the
Veterans Administration (“VA”) who treated the
late Clare William Dukert (“Mr. Dukert”). Trial
on the merits was conducted before the undersigned from
September 7-9, 2016. After having considered all of the
evidence and testimony presented at trial, after reviewing
the parties' pre-trial and post-trial submissions (Docs.
66, 67, 74, 75, 81 & 82) and after considering the
applicable law, the Court finds that Plaintiff failed to meet
her burden of proving medical negligence at trial, and
therefore finds in favor of Defendant.
Dukert was diagnosed with adenocarcinoma of the colon in
January 2010, when a malignant mass was found in his cecum. A
hemicolectomy was performed one month later. Mr. Dukert
underwent five more colonoscopies with polypectomy and biopsy
at the 35-40 cm level (measured from the anus) of the sigmoid
colon for surveillance and treatment of potentially cancerous
lesions, on the following dates: April 10, 2012, June 7,
2012, September 7, 2012 and November 14, 2012. A colonoscopy
performed on February 17, 2011 revealed no polyps in the
sigmoid colon. See Deft. Fact 80. All of the procedures were
performed at the VA Hospital in Albuquerque, New Mexico. All
of the polyps subsequently found and treated were found to be
benign. The sixth procedure was done on February 15, 2015,
during which doctors attempted to remove a residual or
recurrent benign (non-cancerous) polyp and treated the
residual polyp with argon plasma coagulation
(“APC”) instead of only taking a biopsy of the
polyp. Mr. Dukert suffered a perforation of his
sigmoid colon as a result of this procedure in the area where
the polypectomy was performed.
perforation was discovered when Mr. Dukert became very ill
with fever, chills, nausea and vomiting two days after the
procedure. He was seen in the emergency room at the Sierra
Vista Hospital in Truth or Consequences, New Mexico, where
imaging identified a perforation of the sigmoid colon at the
site of the February 15, 2013 polypectomy. He was diagnosed
with acute sepsis and airflifted to Del Sol Medical Center
(“Del Sol”) in El Paso, Texas for emergency
surgery to repair the colon perforation. Following corrective
surgery for the colon perforation, Mr. Dukert suffered
multiple complications including deep vein thrombosis,
cardiac and renal dysfunction and prolonged intubation for
respiratory distress. On March 27, 2013, Mr. Dukert was
discharged from Del Sol to Casa de Oro, a skilled nursing
facility in Las Cruces, N.M. for rehabilitation and
monitoring, and remained there until May 31, 2013, after
which Mr. Dukert received physical and occupational therapy
and home health nursing for ostomy care.
9, 2013, Mr. Dukert had an acute onset of nausea and
vomiting, which was diagnosed as small bowel obstruction. He
was transferred to Mountain View Regional Medical Center in
Las Cruces, where he underwent surgery. He was discharged on
August 2, 2013, but then readmitted the following day when he
had profuse bleeding in his wound area. Mr. Dukert was
discharged from Mountain View Regional Medical Center on
August 7, 2013 and readmitted again on August 15, 2013, where
he died a week later on August 22, 2013.
Mr. Dukert's wife, filed this lawsuit as personal
representative for her husband's estate, asserting claims
against the Defendant under the Federal Tort Claims Act, 28
U.S.C. §§1346(b) and 2671 et seq. She contends that
her husband's death was the result of medical negligence
that occurred during the February 15, 2013 colonoscopy.
Defendant contends that his death was caused instead by
cardiorespiratory arrest secondary to severe metabolic
acidosis secondary to septic shock, and related to
multi-organ failure. The Court next describes the
parties' positions so as to put its factual findings in
claims that the doctors who performed the February 15, 2013
polypectomy, Dr. Henry Lin and Dr. Brian Story, failed to
follow the accepted standard of care for the treatment and
surveillance of residual polyps by performing colonoscopic
polypectomy after multiple prior similar procedures in the
same location, instead of performing abdominal surgery.
Plaintiff also contends that these doctors failed to provide
competent care and safe excision during that procedure which
resulted in the perforation of Mr. Dukert's colon and
eventually his death. Plaintiff contends that Mr. Dukert
underwent too many colon biopsies and also that the use of
argon plasma coagulation (“APC”) during Mr.
Dukert's February 15, 2013 procedure was inappropriate
because it increased the risk of perforation.
position is that Dr. Lin and Dr. Story were not negligent in
offering Mr. Dukert the non-surgical option as well as the
surgical option. Mr. Dukert had a history of colon cancer
along with recurrent polyps, and Mr. Dukert was at high risk
for surgical intervention given his super obesity and serious
comorbities that affected every major organ of his
body, and also because Mr. Dukert was opposed to surgery
after having experienced adverse effects following his 2010
hemicolectomy. Defendant maintains that it was appropriate
for Mr. Dukert to undergo surveillance colonoscopies and
necessary to remove the polyps found in the last two
procedures because they were possibly precancerous in nature.
Defendant also contends that, based on the testimony at
trial, APC has been found to be an effective and safe method
in the management of polyp remnants in the colon, and that
perforation was an unfortunate complication of Mr.
Dukert's last endoscopic procedure but was not the cause
of his death.
the two-day trial, testimony was presented by witnesses
including Plaintiff's expert Dr. Theodore Coutsoftides, a
colorectal surgeon, and defense expert Dr. James Edward
Martinez, a gastroenterologist. The gastroenterologists who
performed the last two colonoscopic procedures-(1) Dr. Henry
Lin, an attending gastroenterologist and supervising
endoscopist, (2) Dr. Kevin Kolendich, an attending
gastroenterologist, and (3) Dr. Brian Story, who was
finishing up a fellowship in colonoscopic procedures at the
VA, also testified at trial. Dr. Kolendich and Dr. Story
testified at trial by videoconference. Two other witnesses
testified at trial, the Plaintiff and Mr. Howard Schroeder,
who was Mr. Dukert's former employer and close friend.
Federal Tort Claims Act (“FTCA”) includes a
limited waiver of the federal government's sovereign
immunity. It allows a claimant to be awarded damages for
personal injury or death caused by the negligent or wrongful
act or omission of any employee of the government while
acting within the scope of employment under circumstances
where the United States, if it were a private person, would
be liable to the claimant in accordance with the law of the
place where the act or omission occurred. 28 U.S.C.
§§ 1346(b)(1) and 2674. Under the FTCA, the
Government's liability is to be determined by applying
the law of the place where the act or omission occurred. 28
U.S.C. § 1346(b). It is undisputed that the VA
physicians were employees of Defendant and that they were
acting within the scope of employment, for purposes of
jurisdiction under the FTCA.
actions brought against the United States under the FTCA, the
district court must look to and apply the law of the place
where the negligent or wrongful acts occurred. Estate of
Trentadue ex rel. Aguilar v. U.S., 397 F.3d 840 (10th
Cir. 2005). In New Mexico, in order to prove medical
malpractice, a plaintiff has the burden of showing that (1)
the defendant owed the plaintiff a duty recognized by law;
(2) the defendant breached the duty by departing from the
proper standard of medical practice recognized in the
community; and (3) the acts or omissions complained of
proximately caused the plaintiff's injuries.
Blauwkamp v. University of New Mexico Hosp., 114
N.M. 228, 231 (N.M.App., 1992) (citing SCRA 1986 13-1101
(Repl. 1991)). Doctors in New Mexico must exercise a duty of
care consistent with a reasonably well-qualified healthcare
provider “practicing under similar circumstances,
giving due consideration to the locality involved.”
NMRA UJI-Civ.13-1101. A doctor “does not guarantee a
good medical result. An unintended incident of treatment [or
a] poor medical result is not, in itself, evidence of any
wrongdoing by the [doctor]. Instead, the patient must prove
that the poor medical result [or the] unintended incident of
treatment was caused by the doctor's negligence.”
NMRA UJI-Civ 13-1112.
are several areas of contention which form the basis for
Plaintiff's medical negligence claims and on which this
case turns: (1) Mr. Dukert's opposition to surgery; (2)
the appropriateness of surgery given his multiple medical
problems, and (3) the use of APC during the February 15, 2013
procedure. The following are the Court's findings and
conclusions on these issues.
Dukert was a 62-year-old non-service connected male veteran
patient at the VA Medical Center in Albuquerque. He entered
military service in the United States Army on May 28, 1970,
and separated from military service, with an honorable
discharge, on December 23, 1971. Deft.. Fact 43.
Dukert moved to New Mexico from Michigan in 2007 and was
employed full-time locally as a truck repair mechanic and
driver. He stood 5'10” tall. Between 2010 and 2012,
his weight varied between 358 and 382 pounds. During that
time period, his body mass index (“BMI”) varied
from 50 to almost 55, which placed him in the category of
“super obese.” Deft.. Facts 44 & 45,
Testimony of Dr. Lin, TR at 304:11-23.
January 2010, Mr. Dukert was diagnosed with colon cancer. In
addition to the malignant tumor, the VA surgeon also
identified one small polyp at the ileocecal valve; one large
and three medium sized sessile polyps in the transverse
colon, and one large sessile polyp in the sigmoid colon. All
polyps were completely removed endoscopically or surgically
in 2010, which was confirmed by the Pathology Report. Mr.
Dukert never again developed a sessile polyp greater than 2
cm. Mr. Dukert had diseases in multiple organ systems. His
other serious health issues included diabetes, blood pressure
problems, chronic kidney disease, gout, hyperlipidemia,
vascular problems, sleep apnea, super obesity with a BMI of
52-53, respiratory issues requiring home oxygen,
supraventricular tachycardia, and a history of colon cancer
with hemicolectomy. Deft.. Fact 8, testimony of Drs.
Kolendich, Martinez & Lin, TR at 345:1-4; 600:3-10;
Colonoscopic perforation is a well-recognized and serious
complication following lower gastrointestinal endoscopies,
but it occurs very rarely. Perforation as the result of
diagnostic colonoscopy has been reported in less than 0.1% of
cases and perforation occurs after colonoscopic polypectomy
in about 0.2% of cases. Deft. Fact 9; Pltff. Ex. 27.
its role as gatekeeper, the Court takes no issue with the
qualifications of any of the experts who testified at trial.
See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137
(1999) (Rule 702 gatekeeping duties of the trial judge apply
to all expert testimony). However, in this bench trial, the
Court also assumes the role of fact finder weighing the
evidence of the witness, including expert witnesses, and
finds that the weight of the evidence leans in favor of
Defendant's expert, Dr. Martinez. The Court also finds
that the testimony of Mr. Dukert's treating physicians is
consistent with Dr. Martinez' testimony.
Plaintiff's expert, Dr. Coutsoftides is a colorectal
surgeon and not a gastroenterologist. Defendant's expert,
Dr. Martinez, is a board certified gastroenterologist who
practices in the Albuquerque area. Dr. Lin is a board
certified gastroenterologist and at all times relevant was
the Chief of Gastroenterology at the Raymond G. Murphy VA
Medical Center (“VA”). Drs. Kolendich and Story
are board certified gastroenterologists who formerly worked
at the VA. Deft. Fact 14.
Gastroenterology and colorectal surgery are different medical
specialties that require separate boards, and doctors must
perform more endoscopies to pass gastroenterology training
than colorectal surgeons have to perform to pass colorectal
surgery training. Deft. Fact 15, TR 111:5-14.
Gastroenterologists typically perform many more colonoscopies
than colorectal surgeons. Dr. Coutsoftides testified he has
performed an average of approximately 250 colonoscopies a
year over his career. In comparison, Dr. Henry Lin testified
that he performs over 1, 500 colonoscopies a year and
Defendant's expert, gastroenterologist Dr. James
Martinez, testified he also typically performs 1, 500
colonoscopies per year. While both gastroenterologists and
colorectal surgeons may perform endoscopic procedures and are
held to the same standard of care when performing
colonoscopies, gastroenterologists undergo more specialized
and more extensive training in endoscopic procedures,
including colonoscopy. Gastroenterologists also regularly
employ newer, more advanced techniques in caring for the
patient's colonic health than do colorectal surgeons.
Deft. Facts 18, 20 & 21, Testimony of Dr. Coutsofides, TR
at 37:11, Dr. Lin, TR at 285:4-5; 494:15; 495:13 and Dr.
Martinez, TR at 500:10 & 502:20-23.
Endoscopy is the use of narrow, flexible lighted tubes with
built-in video cameras (endoscope), to visualize the inside
of the intestinal tract. Colonoscopy is one type of
endoscopy. Colonoscopy is a diagnostic and sometimes
therapeutic procedure in which a flexible tube that is
equipped with a camera at the end is introduced into the
colon (large intestine) for the purpose of examining the
lining of the colon. If abnormal areas are found, the
endoscopist can take a sample of the tissue (biopsy) or
remove the entire abnormality (resection of the lesion, a/k/a
removal of the polyp). Deft. Fact 16.
Measurements from the rectum regarding location of polyps in
the colon are inaccurate because the colon is very stretchy
and elastic. Deft. Fact 27.
polypectomy is the removal of a polyp. A pedunculated polyp
is a polyp with a stalk that looks similar to a mushroom;
these polyps are readily amputated with a wire snare placed
and tightened around the stalk of the polyp. A sessile polyp
is a flat polyp that may be resistant to such amputation with
a wire snare. If attempts at saline injection to raise up the
sessile polyp to aid in removal are unsuccessful, then
piecemeal polypectomy is the standard of care for removal of
a sessile polyp. During piecemeal polypectomy, a biopsy
forceps, which is a tiny tool, is repeatedly used to
“bite off” pieces of visible abnormal tissue
until the entirety of the visualized polyp is removed. Deft.
intestine has four layers. The body replaces the mucosa
(lining) in the colon, which is nearly transparent, every
three days. Below the mucosa is the submucosa, which has
feeding blood vessels that run halfway down. After a
polypectomy, a healing response is initiated in the colon,
resulting in a scar. The visible scar is a sign of completed
healing. However, in removing polyps, the endoscopist is
working above the scar, in the mucosa, which is why none of
Mr. Dukert's pathology samples contained scar tissue.
When the endoscopist no longer sees the blood vessels but
sees only a scar, that scar is between the blood vessels and
the mucosa. Deft. Fact 33, Testimony of Dr. Lin, TR at
instruments used by the endoscopist are very tiny. The biopsy
forceps cannot remove tissue deeper than the mucosa. Deft.
Fact 34, Testimony of Dr. Lin, TR at 292:1-10.
most common types of adenomas are called tubular adenomas.
Tubular adenomas look different under the microscope from the
normal lining of the colon, with glands that look like simple
tubules. Testimony of Drs. Lin and Kolendich.70 15.
“Inking” or “tattooing” is a method
of marking a general site or area of the colon where a polyp
has been removed. Tattooing does not pinpoint a specific site
of a previous polyp. In contrast as to what is generally
understood from tattooing on the surface of the skin, there
is a fairly large area that is discolored. Deft. Fact 26,
Testimony of Drs. Lin & Kolendich, TR at
is recommended that patients with sessile adenomas that are
removed piecemeal should be considered for follow up at
intervals of 2 to 6 months to verify complete removal, and
afterwards, surveillance should be individualized based on
the endoscopist's judgment. Deft. Fact 29, Pltff's
Ex. 29 (2006 colonoscopy surveillance guidelines). The
medical providers at the VA followed this recommendation.
most common types of adenomas are called tubular adenomas.
Tubular adenomas look different under the microscope from the
normal lining of the colon, with glands that look like simple
tubules. Deft. Fact 37, Testimony of Drs. Lin and Kolendich,
TR at 298-299.
second type of adenoma is called villous adenoma. Just as
tubular adenoma looks different from normal tissue, villous
adenoma looks totally different from tubular adenoma. These
two tissue types are distinct not only because of their
different appearance but also because they have different
biology. The villous type has elongated glands that have a
fern-like growth pattern and a higher risk of cancer. Deft.
Fact 38, Testimony of Dr. Lin, TR at 329:18-23 19. A third
type of adenomatous polyp has a mixture of tubular and
villous patterns and is called tubulovillous adenoma. Like
villous adenoma, this is also considered a high risk
histology (microscopic structure at risk of becoming
malignant in the future). However, whether it is a tubular,
villous or tubulovillous adenoma, it is still a benign tumor,
meaning a neoplasm with malignant potential but not actual
malignancy. The biology behind the adenomas makes them
different, and polyps do not “morph” into other
adenomas. Deft. Facts 39, 40, Testimony of Drs. Lin &
Martinez, TR at 299:3-8; Testimony of Dr. Kolendich, TR at
Residual polyp is defined as a remnant of a polyp (tumor or
cancer) after primary, curative therapy. A recurrent polyp
(also known as recurrence of polyps) is defined as the
development of one or more new polyps after a previous polyp
has been removed. Deft. Fact 30.
accepted medical literature provides that, “When there
is an indication to examine the entire large bowel,
colonoscopy is the diagnostic procedure of choice. It is the
most accurate method of detecting polyps of all sizes and it
allows immediate biopsy or polypectomy. Most polyps found
during colonoscopy can be completely and safely resected,
usually using electrocautery techniques. Scientific studies
now conclusively show that resecting adenomatous polyps
prevents colorectal cancer.” Deft. Fact 17, Bond
Prior to undergoing a colonoscopy, patients must undergo a
specified colonoscopy preparation to clean out the colon.
This preparation usually involves a liquid diet, medication,
and drinking copious amounts of fluid, including Golytely.
Some patients, especially diabetic patients, frequently have
difficulty adequately cleaning out their colons, despite
carefully following their doctor's instructions for
colonoscopy preparation. Plaintiff testified that Mr. Dukert
“absolutely” followed his doctors'
recommendations for extended bowel preparation. Testimony of
Patricia Dukert. Despite extended preparation, almost triple
what would be required of most patients, Mr. Dukert had
difficulty cleaning out his colon prior to his colonoscopies.
Deft. Facts 22-24; Testimony of Drs. Lin & Kolendich, TR
at 315:25-316:4; 179:5-10; Testimony of Mrs. Dukert, TR at
patient who repeatedly presents for colonoscopy with a poorly
prepped colon would also present similarly for elective colon
surgery; so whether the patient had emergent colon surgery
after a perforation or whether the patient had elective colon
surgery, there would be spillage (of the fecal contents of
the colon into the abdominal cavity). Dr. Lin testified that
if Mr. Dukert had undergone a colon surgery instead of a
colonoscopy on February 15, 2013, there is no medical reason
to believe that he could have avoided postsurgical
complications. The myriad of surgical complications suffered
by Mr. Dukert after the perforation could still have occurred
if he had undergone surgery without the perforation. Deft.
Fact 25, Testimony of Dr. Lin, TR at 264:20-23; 264:6-16;
of Surgery for Mr. Dukert
Plaintiff alleges that VA doctors should not have given Mr.
Dukert any option other than surgical resection of his colon
to deal with his residual polyp, despite Mr. Dukert's
risk of surgical morbidity (sickness or disease) and
mortality (death). Testimony of Dr. Coutsoftides, TT
2000, John H. Bond, M.D. authored the medical article
entitled “Polyp guideline: diagnosis, treatment, and
surveillance for patients with colorectal polyps”
(“Bond article”); Pltff's Ex. 27. Regarding
post-polypectomy colonoscopic (endoscopic) treatment
and surveillance of “large sessile polyps (>2
cm), ” the 2000 Bond guidelines state, “If
complete resection is not possible after two or three
examinations, the good risk patient should
usually be referred for surgical therapy.”
(emphasis added). The American College of Gastroenterology,
American Gastroenterological Association, and the American
Association for Gastrointestinal Endoscopy, sanctioned Dr.
Bond's article in 2003. The American Cancer Society
joined with these same three organizations to produce an
updated guideline in 2006 entitled “Guidelines for
Colonoscopy Surveillance after Polypectomy: A Consensus
Update by the U.S. Multi-Society Task Force on Colorectal
Cancer and the American Cancer Society.” Deft.
Facts 4-7; Pls. Ex. 29.
Both the 2000 and 2006 guidelines are authoritative in the
field and practice, although there have been continual
additional updates to the guidelines in the field of
gastroenterology because “knowledge continues.”
Deft. Fact 5, on testimony of Dr. Lin, TR at 238-241.
Authoritative guidelines suggest preferable approaches to
medical problems, and are intended to be flexible, versus
standards of care that are “inflexible” and
rarely violated. Deft. Fact 6, testimony of Dr. Martinez, TR
at 511:21-512:1. Pls. Ex. 27.
1978, Dr. Coutsofides authored an article, the purpose of
which was to propose a plan of management in cases based on
“microscopic characteristics so that unnecessary
surgery will be avoided.” Deft. Fact 41.
Bond article guidelines state that:
[t]he patient at high risk for morbidity and mortality from
surgery probably should not have surgical resection. If a
malignant polyp is located in that part of the lower rectum
that would require an abdominal-perineal resection, local
excision rather than a standard cancer resection usually is
justified. (Deft. Fact 42).
Bond article guidelines regarding the appropriateness of
surgery is not inconsistent with Dr. Coutsofides' article
on the avoidance of unnecessary surgery and its risks. The
Bond article states that the provider must question whether
the risk of local recurrence of the cancer is greater than
the risk of surgical intervention. Deft. Fact 42.
After his hemicolectomy in 2010, Mr. Dukert was diagnosed
only with benign polyps, some of which had the potential of
developing into cancer. Thus, the risk assessment for Mr.
Dukert, prior to beginning every surveillance colonoscopy,
was an assessment of whether the risk of removing a benign
polyp by colonoscopy with polypectomy was greater than the
risk of removing it surgically.
Because Mr. Dukert had obesity and diabetes, he “had a
tremendous propensity for abnormal growth of polypoid
tissues.” Dr. Lin testified that he was faced with the
management decision of what to do to help Mr. Dukert control
the polypoid lesions when the patient also has a personal
history of colon cancer. Weighing the risks and benefits of
treatment is something a gastroenterologist must discuss with
a patient like Mr. Dukert. Deft. Fact 13, Testimony of Drs.
Lin & Story, TR at 337:8-19; 429:2-430:3.
Dukert had a past medical history of super morbid obesity and
every comorbidity that is usually associated with obesity,
including type 2 diabetes, hypertension, obstructive sleep
apnea, GERD, and colon cancer, chronic kidney disease,
cardiac dysfunction (paroxysmal supraventricular tachycardia
and chronic venous insufficiency. Also, Mr. Dukert's
breathing was impaired such that he was hypoxic and required
home oxygen. Deft. Fact 47, Testimony of Dr. Lin, TR at
Obesity increases the risk for chronic kidney disease and its
progression to end stage renal disease. Increased surgical
risk and postoperative complications, including wound
infection, postoperative pneumonia, deep venous thrombosis,
and pulmonary embolism, are also well known complications of
obesity. The medical complications of obesity are multiplied
for the super morbidly obese patient. As a result of these
serious comorbidities, Mr. Dukert was a very poor surgical
risk. Deft. Facts 46 & 47, Testimony of Dr. Lin, TR at
Risk assessment involves evaluating the risks of what might
occur, not what has already occurred. Perforation after
colonoscopy with polypectomy occurs in 0.2% (2 out of every
thousand cases). APC adds an additional 0.3% risk (3 out of
every thousand cases). Id. Therefore, added
together, the risk of perforation for colonoscopy with
polypectomy and APC is 0.5% (5 out of every thousand cases.)
However, surgical data indicates that for someone who is
older with multiple medical problems, surgical mortality can
approach 5% (50 out of every thousand). Mr. Dukert was a very
unique patient who had significant risk factors. Dr. Lin
testified at trial that medical research from 2011 looked
specifically at a super obese patient's surgical risk
profile, i.e. their surgical mortality. Mr. Dukert was older
than 40; he had morbid obesity for more than five years; he
had sleep apnea; he had lung disease; he had diabetes; and he
had dyslipidemia. Mr. Dukert had all six of the risk factors,
which gave him an assigned surgical mortality of 10 to 15
percent (100 to 150 out of 1, 000 cases). Deft. Fact10, Pltff
Ex. 27 (“Bond article”); Testimony of Dr. Lin, TR
at 256:23- 258:20, 202:4-7; Testimony of Drs. Lin &
Coutsoftides, TR at 262:1-3; 277:5-13; 45:17-18; Testimony of
Dr. Martinez, TR at 507:19-23.
Dukert had a combined perforation risk with colonoscopy,
polypectomy, and APC of no more than 0.5% (5 out of every 1,
000 cases); a mortality risk from perforation of 0.125%
(1¼ out of every 1, 000 cases), but a surgical
mortality risk of 10-15% (100-150 out of every 1, 000 cases).
Mr. Dukert's risk of dying following surgery was 80-120
times higher than his risk of dying from a perforation
suffered from a colonoscopy with polypectomy and APC. Even
“[t]he risk for local recurrence or for lymph node
metastasis from invasive carcinoma in a colonoscopically
resected polyp is less than the risk for death from colonic
surgery.” Deft. Fact 11, Pltff. Ex. 27; Testimony of
Dr. Lin, TR at 336:21-337:7.
Dukert was not a “good risk patient” referenced
in the Bond article, but was rather a high risk patient with
multiple comorbidities that made surgery risky. Thus, based
on the medical literature, practice guidelines, and the
evidence admitted at trial, the Court finds that it was not a
greater risk for the VA physicians to perform a colonoscopy
Dukert underwent six colonoscopy procedures after the January
2010 procedure and the subsequent hemicolectomy in February
2010. At each colonoscopy (except for the first one in
January 2010), Mr. Dukert underwent therapeutic removal of
recurrent and/or residual polyps, all of which were
Dukert's first colonoscopy at the VA on January 18, 2010
revealed a mass at the hepatic flexure which was an
adenocarcinoma (cancer) and five smaller benign tubular
polyps at other sites in the colon. A large 4 cm. sessile
tubular polyp was also located within the sigmoid colon
located at about 40 cm from the rectum, and this was removed
with a “hot snare.” Medical records report that
this polyp was completely removed by the VA surgeon. The
following month, in February 2010, general surgery performed
a hemicolectomy (resection of the colon) to remove the
After his February 2010 hemicolectomy, Mr. Dukert continued
to regularly develop multiple colonic polyps of all polyp
types throughout his colon. Deft. Fact 55, Deft. Ex. A1 &
A2. His first colonoscopy on January 29, 2010 was performed
by Gastroenterology. However, the subsequent three
post-surgery colonoscopies (February 17, 2011; April 10,
2012; and June 7, 2012) were performed by the General
Surgery Department, after which Mr. Dukert was referred back
to Gastroenterology for three additional colonoscopic
procedures (September 7, 2012; November 14, 2012; and
February 15, 2013). A chronology of these procedures
a. February 17, 2011: the February 2013 colonoscopy
revealed no polyps in the sigmoid colon. The procedure was
initially set for February 16, 2011, but was cancelled due to
poor preparation. On February 17th, in a second attempt, most
liquid stool was removed, allowing doctors to proceed with
the colonoscopy, performed by the VA General Surgery
Department. The purpose of the procedure was to follow up the
previously removed 2010 tubular polyp in the sigmoid colon. A
repeat colonoscopy in one year after extensive bowel
preparation was ordered. Deft. Ex. A3.
b. April 10 2012: General surgery performed this
second surgical follow-up, which revealed a large
tubulovillous adenoma polyp at 35 cm, which was a different
pathology from the one removed in 2010. Deft. Ex. A4.
c. June 7, 2012: General surgery performed this
colonoscopy, and poor preparation was again noted. Recurrent
adenomatous polyps were noted at 35 cm, which was the
“prior polypectomy site, ” and excised with a
snare. Biopsies indicated that the removed polyp was
tubulovillous in pathology, confirming it was a different
polyp than the tubular polyp removed in 2010.
d. After the June 2012 procedure, Mr. Dukert was referred by
the surgeon back to Gastroenterology, where he underwent
three additional colonoscopies:
e. September 7, 2012: Dukert had this fifth
colonoscopy, performed by VA gastroenterologist Dr. J.
Barakat. Bowel preparation was not ideal, but Dr. Barakat was
able to remove in its entirety a villous adenoma polyp at 35
cm, which again confirmed that this polyp was different from
the others previously removed from the area. In the same
procedure, Dr. Barakat identified another polyp in the area
where the colon had been resected in 2010, and this polyp was
removed by raising and injecting it. Dr. Barakat ordered a
repeat colonoscopy in three months. Deft. Ex. A6.
f. November 14, 2012: This follow-up colonoscopy was
performed by attending gastroenterologist Dr. Kevin
Kolendich. There was a 1.1 cm flat polyp near the inked
general site of the three previous attempts to remove the
flat polyp (35-40 cm from anus). Doctors attempted to raise
this 1.1 cm polyp by injecting it from multiple angles, but
were not successful. Because the snare could not be used, Dr.
Kolendich employed piecemeal removal of the polyp with jumbo
biopsy forceps. Histology showed the pieces were fragments of
a tubulovillous adenoma, but without cancer or dysplasia.
Pathology documented that this was a different polyp than the
one removed during the previous colonoscopy. Deft. Ex. A7.
g. February 15, 2013: Dr. Brian Story, along with
Dr. Lin for key portions of the procedure, performed this
colonoscopy. Dr. Story removed two polyps. One was a tubular
adenoma and the other was a 1 cm residual tubulovillous
adenoma which was removed piecemeal with jumbo forceps and
then by argon plasma coagulation (“APC”) in an
attempt to destroy any remaining adenomatous tissue at the
polyp site. This was done without difficulty or complication.
Unfortunately, within approximately 48 hours of returning
home, it was discovered that Mr. Dukert experienced a bowel
perforation, a well-known risk of colonoscopy that occurs in
a certain percentage of patients in the absence of any
negligence. Almost all bowel perforations require surgery,
many with colostomy. All bowel perforations, by definition,
involve the leakage of bowel waste into the abdominal cavity;
and infection (including sepsis) is the most common
complication of the bowel perforation. Deft. Ex. A8,
Testimony of Dr. Lin, TR at 275:21-23.
Dukert's Opposition to Surgery
After undergoing the right hemicolectomy for colon cancer in
February 2010, Mr. Dukert told VA medical providers a few
months later that he had not had a single day in the previous
month where he did not have pain. Mr. Dukert reported
“[h]e feels depressed because he can't do what he
was able to do previously.” Between February and
September 2010, Mr. Dukert was seen in General Surgery and
was sent to Cardiology due to persistent shortness of breath
since his colon surgery. He told VA medical providers he had
been unable to work and was applying for disability. Deft.
Also, after his 2010 colon surgery, Mr. Dukert was no longer
able to do the work he had been doing and he had to quit his
job. Both Mrs. Dukert and Howard Schroeder, Mr. Dukert's
close friend and employer, testified that Mr. Dukert did not
ever fully recover after his February 2010 (hemicolectomy)
abdominal surgery. Deft. Fact 54.
When Dr. Kolendich first began speaking to Mr. Dukert about
surgery prior to the November 14, 2012 procedure, Mr. Dukert
“was adamantly opposed to it.” Dr. Kolendich
testified: “we had discussed his past experiences with
his hemicolectomy, we discussed the fact that he had gone
over the operative risks with surgery, and we discussed the
risks of future colonoscopies and endoscopic attempts, and it
[colonoscopy] was his determination, Mr. Dukert's,
knowing all these things.” Deft. Fact 72, Testimony of
Dr. Kolendich, TR at 409:6-7.
Kolendich's procedure consult note on November 14, 2012
states, “Repeat colonoscopy in 3 months with extended
bowel preparation. If residual polyp remains at 35-40 cm
referral to surgery for resection should be [pursued] as
multiple attempts have been made at polypectomy at this site
with residual polyp remaining.” Deft. Fact 69, Ex. A7.
Kolendich's addendum to this report states, “I
called the patient and informed him of the results of his
endosocpy [sic] and pathogy [sic]. I recommended he undergo
repeat colonoscopy in 3 months with extended bowel
preparation as there was residual polyp at his previous
polypectomy site and 35-40 cm.” Deft. Fact 70, Ex. A7.
addendum to Dr. Kolendich's note further states: “I
informed the patient that if residual polyp remains at 35-40
cm at the time of his follow-up endosocpy [sic] he will need
referral to surgery for resection of the polyp as multiple
attempts have been made at polypectomy at this site with
residual polyp remaining. He voiced [his] understanding, all
his questions were answered to his satisfaction.” Deft.
Fact 71, Ex. A7; Testimony of Dr. Kolendich, TR at 371, 410.
Kolendich's policy was that “every physician needed
to have a conversation with a patient following a
procedure.” Testimony of Dr. Kolendich, TR at 385:4-20.
Because the patient would still be sedated, it was his
“strong preference that family be present.”
Id. Dr. Kolendich's practice was to speak with
the patient before the procedure and later call the patient
when he is no longer under the effects of sedation.
Id. Dr. Kolendich recalled that Plaintiff (Mrs.
Dukert) was present briefly in the post-operative area when
he discussed subsequent surveillance and treatment options
after the November 14, 2012 procedure. TR at 383:1-10.
November 14, 2012 procedure was the third attempt to remove a
tubulovillous polyp at 30-40 cm., with the other two on April
10, 2012 and June 7, 2012, since the medical records do not
indicate the presence of tubulovillous polyps in the sigmoid
colon prior to the April 2012 procedure. Testimony of Dr.
Kolendich, TR at 373:8-9 (“There had now been two
colonoscopies with removal of polyp”).
referral to surgery was actually a re-referral, since Mr.
Dukert had initially been a surgical patient and was then
referred to gastroenterology for the subsequent
colonoscopies. A referral to surgery did not mean that
surgery would definitely be performed. The purpose of a
surgical referral was so that “surgeons could
re-evaluate [Mr. Dukert] to determine if they felt he was a
surgical candidate.” Testimony of Dr. Kolendich, TR at
Plaintiff contends that Mr. Dukert should have been treated
surgically for this last polypectomy in February of 2013, and
claims that Mr. Dukert was never given the option of surgery
for the February 2013 follow-up. In proposed post-trial
findings, Plaintiff states that Dr. Lin and/or Dr. Story
failed to provide Mr. Dukert with surgical options for the
appropriate treatment of his residual sigmoid lesion prior to
the February 15, 2013 colonoscopy procedure. See
Pltff's Fact 10. However, the Court notes that this
statement is unsupported by any evidence or testimony
presented at trial, and is in fact plainly refuted by
evidence and testimony presented by Defendant which supports
Defendant's position that both options were discussed
with Mr. Dukert.
standard of care also demands that physicians advise patients
of the benefits, risks, and alternatives to treatment. It is
the physician's duty to make sure the patient is well
informed prior to starting a procedure. The requirements of
standard of care are to present all the options available to
the patient at that point in time. Deft. Fact 12, Testimony
of Dr. Lin, TR at 255:17-24.
relevant standard of care demanded that VA physicians inform
Mr. Dukert of the risks and benefits of both colonoscopy and
surgery, including but not limited to the risk of perforation
from colonoscopy that could require subsequent surgery,
colostomy, and/or lead to his death.
Prior to the February 15, 2013 procedure, Dr. Story discussed
the risks, benefits, and alternatives of the procedure,
including surgery, with Mr. Dukert in detail, including risks
of bleeding, infection, perforation that may require surgery
and drug reaction from conscious sedation. Deft. Fact 76,
Testimony of Dr. Story, TR at 429:16-20.
addition to meeting with Mr. Dukert before the February 15,
2013 procedure and before he was sedated, Dr. Story also met
with both Mr. Dukert (who was alert at the time) and his wife
about 15 to 25 minutes after the procedure. He spoke
with them “at length” about continued
surveillance of his polyps in the event that they hadn't
removed the entire polyp. TR at 441, 443-444. Dr. Story
explained the potential complications that could come from
continuing to do endoscopic surveillance. Dr. Story testified
that he “wanted to make sure that Mr. Dukert understood
all of the potential issues that could come about from the
various options he had.” Mr. Dukert felt that due to
his other medical issues and his “struggle during his
previous surgery for colon cancer in 2010, ” he simply
was not interested in pursuing any sort of surgical
treatment, if possible, for any further follow-up.
Story stated that Mr. Dukert “was quite adamant about
it.” Mr. Dukert had explained that he had a
“tough go” with his previous surgery and he
really didn't want surgery “if at all
possible.” Mr. Dukert gave his written consent for the
procedure after his questions were answered. Deft. Facts 76,
79 & 82, Testimony of Dr. Story, TR at
Both Dr. Kolendich and Dr. Story testified at trial that Mr.
Dukert was “adamantly” opposed to the surgery
option. At trial, Plaintiff pointed out that there were no
medical notes specifically referring to Mr. Dukert's
opposition to surgery as “adamant.” However, the
Court as fact finder must consider the testimony of witnesses
as well and the witnesses' credibility. The Court finds
the physicians who testified regarding Mr. Dukert's
opposition to surgery to be credible. Moreover, the
physicians testimony that Mr. Dukert was opposed to surgery
makes perfect sense considering that Mr. Dukert never really
recovered from his colon cancer surgery in 2010.
Lin, who was present at the February 15, 2013 procedure,
generally reviews the patient's medical record and
independently goes through the patient's history and
physical condition before the procedure and talks to other
physicians participating in the procedure about the patient
before the procedure. Deft. Fact 75, Testimony of Dr. Lin. TR
at 281:14-16 & 22-23.
Plaintiff's expert, Dr. Coutsoftides, testified that the
standard of care demanded that Mr. Dukert be told “you
have another polyp, you should consider seriously surgery.
And then evaluate the patient as a surgical risk, and then
decide what they want to do.” Deft. Fact 81, Testimony
of Dr. Coutsoftides, TR at 74:108.
Defense expert, Dr. Martinez, also testified that the
standard of care is: that surgery is considered; that the
patient's risk factors are evaluated; honoring a
patient's desire for surgery or not to have surgery.
Deft. Fact 81, Testimony of Dr. Martinez, TR at 571:13-20;
Because Mr. Dukert had such a high risk of mortality and
morbidity with surgery, because he wished to avoid surgery if
at all possible, and because the VA had not yet exhausted all
the non-surgical options for polyp removal (i.e., APC), in
consultation with the patient, Dr. Lin, Dr. Story, and Mr.
Dukert agreed to proceed with one more therapeutic
colonoscopy. Deft. Fact 83, Testimony of Dr. Story, TR at
Prior to each and every colonoscopy, VA medical providers
advised Mr. Dukert orally and in writing of the risks and
benefits of the procedure, including the known risk of bowel
perforation, and the alternatives to the procedure, including
surgery. Each time, Mr. Dukert chose to undergo a colonoscopy
rather than to undergo abdominal surgery. Deft. Fact 7; Ex.
A; Testimony of Drs. Martinez, Lin, Kolendich, and Story.
Standard of care does not specify the exact number of
recommended polypectomies of benign polyps in a high risk
patient; the guidelines leave that determination to the
professional discretion of the treating physician. Dr.
Bond's article states, “. . . decision as to
whether to perform colonoscopy for patients with polyps
measuring less than 1 centimeter in diameter must be
individualized depending on the patient's age,
comorbidity, and past or family history of colonic
neoplasia.” Pls. Exs. 27 & 29 (Bond article and
all times VA physicians provided standard of care treatment:
they fully advised Mr. Dukert that he should consider surgery
as one of his options and of the risks and benefits of both
colonoscopy and surgery; they evaluated Mr. Dukert as a high
surgical risk and involved Mr. Dukert in the decision of how
to proceed with managing his multiple recurrent polyps and
his one residual sessile polyp. After being fully informed of
the risks and benefits of both surgery and colonoscopy, Mr.
Dukert chose to proceed with colonoscopy rather than another
surgery. Deft. Fact 2; Deft. Fact 81; Pls. Exs. 27 and 29.
Plaintiff notes that the list of Mr. Dukert's
“prior surgeries” listed on the paperwork for the
February 15, 2013 procedure indicates that neither Dr. Lin
nor Dr. Story were aware of the removal of the large sessile
polyp that took place on January 29, 2010. See Doc.
75 at 7 (Pltff's Rebuttal to Deft.'s Closing Arg.).
Plaintiff argues that because Dr. Lin and Dr. Story had a
“flawed understanding” as to the number of Mr.
Dukert's previous polypectomies, they erred in making the
referral to surgery “just one procedure too
late.” Id. at 8.
There is no evidence to support this argument for several
reasons. First, Dr. Story testified that he was in fact aware
of Mr. Dukert's January 2010 colonoscopy, and the Court
finds his testimony to be credible. TR at 426:1-7. He had no
explanation as to why the January 2010 colonoscopy was not
included in the list of “prior surgeries.”
Id. Second, the evidence shows that the 4 cm sigmoid
tubular polyp found during the January 2010 procedure had
been completely removed and no polyps were located at this
location for almost 24 months, until April 2012 when the next
sigmoid polyp was found. Third, it is sheer speculation to
argue that Mr. Dukert would have been referred to surgery
sooner had the January 2010 procedure been listed on the
paperwork. Fourth, based on the evidence and testimony
presented at trial, Mr. Dukert was opposed to surgery,
notwithstanding an earlier referral for a surgical consult.
Plaintiff's argument regarding a lack of knowledge by Dr.
Lin and Dr. Story about the January 2010 colonoscopy has no
of Argon Plasma Coagulation (“APC”)
Coutsofides testified that using argon plasma coagulation
increased the risk of perforation for Mr. Dukert. TT
However, Dr. Coutsoftides testified that he could not opine
that the use of APC was below the standard of care and he
noted there was no significant bleeding at the polyp site.
Deft. Fact 88.
Defendant's expert, Dr. Martinez, also testified that he
regularly uses APC with his patients and that it was
appropriate and correct to use APC for Mr. Dukert. Testimony
of Dr. Martinez. Deft. Fact 88, TR at 502:10-13; 517:14016
68. APC is a non-contact electrosurgical procedure that
applies thermal heat to control bleeding and eliminate the
likelihood of residual polyp tissue. The use of APC increases
the risk of perforation by 0.3% (3 out of 1, 000), because
the provider is applying an additional thermal intervention,
so compared to not doing anything at all, there is a slightly
greater risk involved with its use. APC is considered as an
effective adjunct therapy that is approved for use in
managing colonic polyps. Deft. Fact 87, Testimony of Drs.
Martinez, Lin, and Coutsoftides, TR at 521:20-21; 262;1-3;
45:17-18. Deft. Facts 30-31, 87.
argon plasma coagulator device has a time- and
power-generated depth of penetration; the safety of the
instrument is based on the fact that once the viable cells
dry up, the current stops flowing. The APC catheter used at
the VA has a built-in software program to auto-regulate the
settings. Testimony of Dr. Lin.61 70. Plaintiff's expert,
colorectal surgeon Dr. Coutsoftides, has at most only used
APC a dozen times in the last 10 years. On the other hand,
Defendant's expert, gastroenterologist Dr. Martinez,
regularly uses multiple techniques, including argon plasma
coagulation (“APC”), because he has at least two
colonoscopy patients a day with challenging health profiles.
Deft. Fact 21.
Plaintiff presents no post-trial proposed findings of fact
and conclusions of law addressing the use of APC during the
February 15, 2013 procedure. In her written Rebuttal to
Defendant's Closing Argument, Plaintiff argues that there
was no reason to use APC during the February 15, 2013
procedure since there was no testimony that either bleeding
or residual polyps had been present. Doc. 75 at 9. This
statement is inaccurate, since Dr. Martinez, Dr. Lin and Dr.
Story testified at trial that APC was used to remove a
residual polyp as well as to contain the bleeding at the
polyp site during the February 15, 2013 procedure, and the
Court finds this testimony to be credible. See
Testimony of Dr. Story, TR at 437:11-15; 439:17-21 (use of
APC was an “attempt to kill any residual polyp cells
that may have been left behind despite our forceps
removal”; Testimony of Dr. Lin, TR at 109:14-20;
333:16-334:5; Testimony of Dr. Martinez, TR at 526:7-12;
543:3-7; 584-585; 517 at 14-16.
use of APC during Mr. Dukert's February 15, 2013
colonoscopy was within the accepted standard of care for the
treatment and surveillance of residual polyps.
Dukert was a super obese patient with numerous serious
comorbidities that put him at a high surgical risk of
morbidity and mortality. Despite his high morbidity and
mortality risk, Mr. Dukert successfully underwent and
recovered from surgery to repair the colon perforation. Deft.
Fact 94, Testimony of Dr. Martinez, TR at 546:1-12;
Pltff's Exs. 3 & 4.
Dukert suffered a recurrent bowel obstruction after the
February 2013 procedure, but Plaintiff has failed to
establish that the colon perforation resulting in the
February 15, 2013 procedure proximately caused the recurrent
bowel obstruction. In fact, no one can say with certainty
what caused it, and it could have been due to previous
surgeries or the peritonitis that developed. Deft. Fact 98,
Testimony of Dr. Coutsoftides, TR at 84:23-85:5.
one can trace the bowel obstruction to the surgery that Mr.
Dukert underwent to repair the colon perforation because any
abdominal adhesion (scar tissue) can cause a bowel
obstruction and Mr. Dukert had undergone multiple abdominal
surgeries. Deft. Fact 98, Testimony of Dr. Martinez, TR at
American College of Surgery and the Center for Medicare and
Medicaid Services consider postoperative complications to be
issues that arise within a 30-day period after surgery. Mr.
Dukert died approximately three months after he was
discharged from the Casa de Oro Center. Deft. Fact 95,
Testimony of Dr. Martinez, TR at 546:13-17.
Plaintiff did not meet her burden of proving that Mr.
Dukert's death was the result of the February 15, 2013,
colonoscopy or the bowel perforation, rather than from
cardiorespiratory arrest and sepsis, multi-system organ
failure and metabolic acidosis subsequent to a surgery at
Mountain View Hospital and months after he suffered a bowel
perforation. Deft. Fact 99, Testimony of Dr. Martinez, TR at
546:1-12; Deft. Exs. A & I, Pltff's Ex.
prove medical negligence, a plaintiff must prove that (1) the
defendant owed the plaintiff a duty recognized by law; (2)
the defendant breached the duty by departing from the proper
standard of medical practice recognized in the community; and
(3) the acts or omissions complained of proximately caused
the plaintiff's injuries. NMRA UJI-Civ. 13-1111.
2. In a
medical negligence case, a medical negligence case, a
plaintiff must prove that a poor medical result or the
unintended incident of treatment was caused by the
doctor's negligence. NMRA UJI-Civ. 13-1112.
Story and Dr. Lin acted appropriately and within the standard
of care and established guidelines in undertaking a follow up
colonoscopy with repeat polypectomy on February 15, 2013. The
VA physicians acted appropriately and within the standard of
care in all aspects of performing Mr. Dukert's
colonoscopy on February 15, 2013, in light of (1) Mr.
Dukert's medical condition and super obesity; (2) the
significantly greater risk of morbidity and mortality for Mr.
Dukert associated with surgery versus colonoscopy with
polypectomy; and (3) Mr. Dukert's express wishes to avoid
standard of care did not require VA gastroenterology
physicians to provide Mr. Dukert with only the
option of surgery for the treatment of his residual sigmoid
polyp lesion on February 15, 2013, but rather required VA
gastroenterology physicians to fully advise Mr. Dukert of the
risks and benefits of all treatment options,
surgical as well as non-surgical, and this was done by the VA
physicians who cared for and treated Mr. Dukert.
standard of care did not require VA gastroenterology
physicians to refer Mr. Dukert for primary surgical resection
of the sigmoid polyp lesion on or about February 15, 2013.
standard of care did not require the VA surgeons to perform a
bowel resection surgery on a benign polyp on or about
February 15, 2013.
Dukert died on August 22, 2013, due to cardiorespiratory
arrest; severe metabolic acidosis and multi organ failure;
and severe shock, likely septic.
Plaintiff has failed to prove that the acts or omissions of
Defendant and the VA physicians proximately caused Mr.
Dukert's injuries and ultimately, his death. Mr.
Dukert's death on August 22, 2013 was not the proximate
result of the perforation of his colon following the February
15, 2013, colonoscopy that occurred six months earlier, but
rather from complications from the surgery.
perforation injury to Mr. Dukert's colon was the result
of a well-known medical complication in a colonoscopy and not
the result of medical negligence or malpractice; it was an
unfortunate complication of his last colonoscopy, but it was
not the cause of Mr. Dukert's death.
VA physicians followed practice guidelines and standard of
care to vigilantly and appropriately monitor Mr. Dukert's
gastrointestinal system to ensure that he would not develop
any further malignant lesions in his colon.
Plaintiff failed to meet her burden of proof that Defendant
breached the duty of care for Mr. Dukert on February 15,
Having found no basis for liability, the issue of damages is
moot. Nevertheless, the Court would find that on the issue of
damages Plaintiff failed to meet her burden of proof
establishing that subsequent medical bills incurred for Mr.
Dukert's treatment were related to the bowel perforation
and/or were reasonable in amount and medically necessary as
described in NMSA 1978 § 41-5-3; NMRA UJI-Civ 13-1802
Defendant United States of America is not liable to
Plaintiff, and therefore Plaintiff is not entitled to recover
general or special damages in this matter.
finding of fact that is more appropriately a conclusion of
law shall be deemed a conclusion of law. Any conclusion of
law that is more appropriately a finding of fact shall be
deemed a finding of fact.
Judgment consistent with these findings and conclusions shall
be entered in favor of Defendant United States of America,
and against Plaintiff Patricia Dukert, Individually and as
Personal Representative of the Estate of Clare William
Dukert, in accordance with Federal Rule of Civil Procedure
52(a)(1) and Rule 58.
 A hemicolectomy is the removal of the
right or left side of the colon. Stedman's Med'l
Dict. 399380, database updated Nov. 2014. A colonic
polyp is extra tissue that grows inside the colon. An adenoma
is an abnormal growth of the mucosal cells of the lining of
the colon. As it relates to colonic polyps, biopsy is the
removal of a sample of body tissue (polyp) for examination;
pathology refers to the laboratory examination of samples of
body tissue; and histology refers to the microscopic
structure of the polyp. See, generally, testimony of
Drs. Lin and Kolendich, Doc. 78 (Trial Transcript, or
 Based on the testimony at the hearing,
cautery with argon plasma coagulation is a medical endoscopic
procedure used primarily to control bleeding from certain
lesions in the gastrointestinal tract.
 “Comorbidities” refers to
the simultaneous presence of two or more chronic medical
conditions or diseases.
 Because the Court concludes in the
end, that Plaintiff has not met her burden for the claims
asserted in this lawsuit, the Court herein adopts
Defendant's detailed findings. For ease of reading, the
Court will note the fact number from which the findings are
taken at the end of each Court finding. Also for ease of
reading, citations for the source of supporting testimony or
exhibits may not be referenced in their entirety, since the
parties' post-trial proposed findings and conclusions
include this information.
 Body Mass. Index, a measure of body
fat based on height and weight. A BMI of 25 to 29.9 is
overweight; a BMI of 30 to 39.9 is obese; a BMI of 40 to 49.9
is morbidly obese, and a BMI of 50 or more is super obese,
which is the highest level of risk medically. (TR., p. 305,
 The Court adopts Defendant's
findings as to the qualifications of Dr. Martinez as an
expert, and as to the extensive experience and professional
background of Dr. Lin. See Deft. Fact 19.
 The procedures are described in detail
in Deft. Fact 80. The Court includes details here regarding
site and nature of polyp, the physicians involved in the
procedure and the procedure for removal.
 Prior to trial, the court bifurcated
the issue of liability from damages. Doc. 72. At trial,
Defendant argued that Dr. Coutsoftides was not qualified to
give an opinion on damages. The Court agrees that Dr.
Coutsoftides did not have the expertise to on the
reasonableness of necessity of Mr. Dukert's medical
expenses incurred after his discharge from the VA Medical
Center, and that Plaintiff presented no foundation for these
expenses at trial. However, because the Court finds in favor
of Defendant on the liability issue, the issue of damages is